We wrote earlier on this blog about an important change in the law regarding a police officer's right to search the vehicle of a person recently arrested in his vehicle. Prior to that change, when police arrested a person in or at his/her vehicle, the police had a right to search the passenger compartment (not the trunk) of the vehicle. This was considered a search incident to an arrest and provided the police with an automatic excuse to search a vehicle of a suspect and gather evidence against that person for the crime for which he/she was arrested or a new crime. Many possession of marijuana, cocaine, and other drugs or weapons cases have been made this way.

However, as we noted, the law changed and limited the police officer's right to search a person's vehicle after his/her arrest. The new law stated that the police could only search a person's vehicle after his/her arrest if the person was within arm's reach of the vehicle or the police officer was aware of specific facts indicating that evidence of criminal activity could be found in the vehicle. The justification for the former basis was that if the suspect had access to the vehicle, the police officer had a right to search it to make sure there were no weapons present that could pose a safety risk to the officer. In practice, this should not be a common scenario as most police officers will secure a suspect with handcuffs and place him/her in the police car upon arrest to make sure the suspect is secure. Once the suspect is in handcuffs and in the police car, the suspect has no access to anything in his/her own vehicle so the police do not have a right to search it for weapons and officer safety. The justification for the latter basis is obvious. If the police officer can articulate specific facts indicating evidence of criminal activity is in the car of a person recently arrested, the officer has a right to search the vehicle for that evidence before the vehicle is driven away.

However, a Florida court (not in the Jacksonville, Florida district) has expanded the police officer's right to search a suspect's vehicle incident to arrest in a way that we believe is excessive. In a recent case out of Lake County, Florida, which is about two and a half hours south of Jacksonville, Florida, a police officer stopped a suspect in his vehicle after determining that he had several warrants for his arrest. Two of the warrants were for theft charges. The police officer handcuffed the suspect and placed him in the patrol car. The police officer then looked inside the suspect's vehicle and saw a woman's wallet. The police officer checked the wallet and noted that it belonged to an elderly lady. The police officer then searched the vehicle and found three more purses that belonged to elderly women.

Based on the fact that the suspect was already secured when the police officer seized the first wallet, the criminal defense lawyer for the defendant moved to suppress evidence of the wallets. The criminal defense attorney argued that the police officer had no basis for searching the vehicle because the defendant was already secured in the police car and there were no specific facts indicating that there was any evidence of a crime in the vehicle.

The Florida court disagreed. This is understandable because there is an argument that where a police officer sees a woman's wallet on the driver's seat of a vehicle of a male with two outstanding warrants for theft, the officer has reasonable suspicion that the wallet is stolen giving him the right to check the wallet. Had the court justified the search on this basis, there would be no cause for concern. The problem, as we see it, is that the court went far beyond that line of reasoning. The court held that any time a person is arrested in his/her vehicle for a crime that might yield physical evidence, presumably such as theft, drug-related crimes and many others not identified by this court, the police officer can search the vehicle, and any containers in the vehicle, for evidence regardless of whether the person has access to the vehicle.

We see several problems with this rationale. One, how does one define a crime that "might yield physical evidence"? This phrase could be interpreted to include many crimes where the likelihood of finding physical evidence in that vehicle is minimal. Second, and by no means last, in many cases people are pulled over and arrested on warrants that are years old. If a person is arrested on a 3 year old theft warrant, is the remote chance that there will be physical evidence in that vehicle at the point of arrest a sufficient basis to outweigh a person's Constitutional right to be free from unreasonable searches and seizures? We think not.

In any case, this is a recent Florida decision from a district south of Jacksonville. We suspect this scenario will come up again and there will be a fight over whether such a search is truly Constitutional.